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Dan River coal ash spill
Row, row, row your boat, thickly down the stream. This is the Dan River
after Duke Energy dumped up to 82,000 tons of coal ash into it.
As FishOutofWater explained here Wednesday, the Duke Energy coal-ash spill at Eden, North Carolina, has tainted at least 70 miles of the Dan River with arsenic-saturated waste, killing wildlife there. The spill could have been avoided if Duke had been a responsible corporate citizen and properly lined its waste dumps as environmentalists wanted. Instead, Duke poured money into Republican campaign coffers the way it poured poisonous coal ash into the river. Draw whatever conclusions you'd like from the fact that Duke has gotten what amounts to a regulatory wink-wink, nod-nod from state officials who report to Republican Gov. Pat McCrory, who worked at Duke for 28 years.

True to form, Duke and North Carolina regulators have consistently downplayed the spill and its impact. Initially, the state Department of Environment and Natural Resources claimed that arsenic levels were within safety standards. But environmental advocacy groups found otherwise and say their test results found not only arsenic but also lead and other toxic metals way above safe levels.

Federal authorities are now seeking to draw their own conclusions in the matter. They have issued a flood of subpoenas:

Eighteen state water-quality officials have been ordered to appear before a grand jury March 18 in Raleigh to report on their communications with Duke for the past five years as well any payments or gifts from the company. A week ago, the DENR was subpoenaed solely for its records related to the coal-ash spill. But it now has been subpoenaed to supply all coal ash-related records for Duke’s 14 operating and shuttered coal-fired plants in North Carolina. Duke itself has received a subpoena, but company officials have not revealed its contents.

There is more on this story below the fold.

Rachel Maddow at MSNBC has been giving lively coverage to the issue, as you can see here. She bluntly noted Wednesday that investigators “appear to be looking to see if anyone got paid off by Duke Energy when they were working for Pat McCrory’s administration to supposedly regulate Duke Energy.” Steve Benen writes at the Rachel Maddow blog:

Of particular interest was a settlement between the McCrory administration and Duke Energy involving previous instances in which the company polluted ground water at two other sites.
The state proposed that Duke pay $99,111 to settle the environmental violations at Asheville and Riverbend. Environmentalists criticize the proposed fines as couch-cushion change for a company valued at nearly $50 billion.

“This is a common technique of regulators who are friendly with the law-breaking regulated entities,” [Frank Holleman, a senior attorney at the Southern Environmental Law Center] said. “They will come in and file at the very last minute and then quickly propose a favorable settlement to the lawbreaker to prevent the citizens group from leading the litigation.”

The settlement didn’t require Duke to actually clean up the pollution, but in an interesting twist, the McCrory administration, which had struck the deal, asked a court to reject it after the Associated Press reported on its existence.
At a press conference Wednesday, North Carolina Environment Secretary John Skvarla defended himself and his department against claims that they had soft-pedaled regulation of Duke. “Any implication or allegation that DENR and Duke Energy got together to make some smoky, backroom deal for a nominal fine is just nonsense,” he said.

The DENR last year filed lawsuits against Duke and eventually came up with the $99,111 settlement, which did not mandate a clean-up of coal-ash dumps. Environmental advocates called the deal too lenient, a sham designed to protect Duke from heavier fines it might have faced in federal court. The DENR suits were only filed after the Southern Environmental Law Center gave notice that it was going to sue under the federal Clean Water Act. Such suits cannot go forward if a state regulator has launched its own suit.

Nonetheless, Skvarla told reporters that his department is on the “on the same side of the table” regarding Duke's coal ash. But Charlotte Observer reporter Bruce Henderson says the law center "does not regard DENR as its partner." It challenged Skvarla on several points and said DENR has repeatedly failed to provide requested documents about its negotiations on the settlement and other matters.

Finding out what is in those documents now depends on the forcefulness of federal investigators. But even the best investigations and most excoriating reports often come to nothing if public officials and private interests can find a way to shelve them.

Ultimately, dealing with coal-ash dumps depends on a new attitude being instilled among regulators who have given Duke and other companies far too much leeway in how they handle this toxic debris, the frequent spilling of which has, through recklessness and negligence, poisoned the land and killed scores of people. All without anything approaching adequate redress. The current occupant of the North Carolina governor's mansion is a most unlikely candidate to make that change.

Originally posted to Meteor Blades on Thu Feb 20, 2014 at 10:38 AM PST.

Also republished by North Carolina BLUE, DK GreenRoots, EcoJustice, and Daily Kos.

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